An Appeal Riles Inspector, Board Splits on Another

The East Hampton Town Zoning Board of Appeals had applications before it in recent weeks on properties facing Gardiner’s Bay, delaying decision on one — which Tom Preiato, the town’s head building inspector called “an insult,” and saying no by a split vote to two others for a concrete revetment. A few mixed decisions and yeses were also handed out on less controversial proposals.

The application that Mr. Preiato objected to was for property at 57 Waters Edge in the Barnes Landing neighborhood of Springs. Because coastal bluffs and wetlands were involved, the owners sought a natural resources permit. They also asked for a variance to allow them to build 43 feet from a bluff crest when 100 feet is the required setback. The hearing was on Aug. 6.

An 1,196-square-foot-house with a 500-square-foot deck had been constructed on the site before the town zoning code was adopted, so it was a legal pre-existing, nonconforming use. The owners had come before the Z.B.A. in early 2012, requesting variances to construct a 549-square-foot second story, along with a terrace and a 480-square-foot swimming pool. These requests were granted. At the same time, however, the board denied a request for an additional 1,136-square-foot second-story expansion, which members found would violate the pyramid law regulating the height of buildings in relation to property lines. Then, in Nov. 2012, the board approved a modification of the previous approvals, granting permission to replace the existing deck. So far, so good.

But on April 30, Mr. Preiato issued a stop-work order after learning that not only had the deck been removed, but the house itself. By removing the house, Mr. Preiato, and subsequently the Town Planning Department, agreed that the house had lost its pre-existing, nonconforming status. This was significant because the rules for new houses on vacant lots take the environment into consideration.

Lisa D’Andrea, a member of the Planning Department staff, sent the board a memo before the hearing noting that the property is in the Peconic Estuary critical environmental area as well as the Accabonac Harbor scenic area, a state designation. A new house would have to be sited, the memo said, in an area less harmful to the environment on the property, which is well over an acre.

“I made it clear from day one that this house was not to be removed,” Mr. Preiato told the board at the hearing. He also addressed what he indicated had become a questionable practice: rebuilding a nonconforming structure by taking it down one wall at a time. He called the practice “an unwritten code.”

Not only had the whole house been removed, but the foundation itself had apparently been moved. He called what was done an insult. “I was born at night, but not last night,” he said.

Jonathan Tarbet, an attorney, did his best to defend the owners. One of them, Matt Rutigliano, also spoke at the hearing. Mr. Tarbet said Mr. Rutigliano thought he was complying with law. Mr. Rutigliano said he had taken the house apart in pieces, with the goal being to reconstruct it as it was. “I made a mistake,” he said.

Alex Walter, the board’s chairman, commented that it had been a 1960s-style house and asked, “Once you take it apart, how are you going to put it back together?”

“. . . You must have known this wasn’t going to work,” Don Cirillo, a board member, said. “You want the best of both worlds. Every homeowner is going to say, ‘What a great idea.’ Just accidentally tear the house down.” The board is expected to rule in the next few weeks.

Two no votes were on applications from the owners of 235 and 237 King’s Point Road, facing Gardiner’s Bay in Springs. Virginia Schmidt and David Wagner wanted to build a single 180-foot concrete structure, ribbed with rebar, and held in place with helical wall anchors to protect both lots. Each lot is slightly under 30,000 square feet. A natural resources permit was needed. It was unclear whether the East Hampton Town Trustees would also have to approve the project. The board voted 4-to-1 against the applications, with Don Cirillo casting the only yes vote.

At a June 4 public hearing, David Lys, a board member, said the applicants had not demonstrated that they had sufficiently explored softer alternatives to the concrete structure. He warned of the impact such a bulkhead would have on neighboring coastline. Another member agreed. “The bulkheads have a large scouring effect,” Lee White said. Brian Gosman, who is also a member of the board, said he sympathized with the owners, but added, “The way the code is written, it doesn’t meet the code.”

Mr. Cirillo disagreed. “All the houses to the west have hard structures. It is not fair to say to the applicant that they are the last ones in, and they are not allowed to build. They are not going beyond what the neighbors have done,” he said.

However, Mr. Walter pointed out that the neighboring bulkheads were made of wood. In its review, the Planning Department had warned of negative implications of approval.

In other action, an application was recently approved for a 10-by-55-foot solar panel to be built on a Montauk bluff by Nejma and Peter Beard of Old Montauk Highway. The well-known naturalist and photographer and his wife had come to the board before. At that time, the panels were to be placed just one foot, rather than the required 15 feet, from neighboring state parkland. The board had voted it down, 4-to-1. The proposal had subsequently been modified, moving the panel six more feet from the sideline. After a brief discussion following a July 23 hearing, the board approved the amended application unanimously.

In two other appeals, the board gave each applicant both a yes and a no. Sean MacPherson, the owner of the Crow’s Nest restaurant in Montauk, wanted to build a 432-square-foot second-story addition on his house on Miller Avenue in Montauk, along with legalizing a shower and a deck, which had been built before he bought the property.

He also asked for approval to build a new 600-square-foot garage for his vintage cars. The board went for the second-story addition, but not the garage. Mr. Gosman said it would have “too big of a footprint” on the environmentally sensitive property. And Mr. Cirillo agreed. “It looks more like a barn than a garage,” Mr. Cirillo said. The board voted 4-to-0, with Mr. Lys abstaining.

Another yes and no were given to a second Montauk applicant who wanted to build an addition along with a garage that would have dwarfed Mr. MacPherson’s.

Donna Gilbert had applied for a 400-square-foot, two-story addition for her Madison Drive house in Montauk and a new 971-square-foot detached garage. The board voted unanimously to approve the addition to the house, but gave the garage a resounding 5-to-0 no.

About the Author

T.E. McMorrow began freelancing for The Star in 2009, before coming on staff, full time, at the end of 2011. He is a member of the Drama Desk in New York. His book, “Nutcracker in Harlem,” illustrated by James Ransome, is scheduled for publication in the fall of 2017 by HarperCollins children’s division.